UK citizen working for UK comp in NL exercise treaty rights?

[nt16]

Hi Guys,

I am looking to exercise my EU treaty rights in Netherlands as it has become difficult for me to bring my mother, non EU national, who is a widow and dependant upon me.

I have found the EU route as a possible way to bring my mother with me back to the UK. I will also be looking to bring my wife along with me although she does meet the required criteria to come direct but since I need to do this for my mom then I might as well for my wife.

I am currently working with a company that has an office in Netherlands, not an NL registered company, but has a couple of employees and a website that is maintained by them. Hence. I am thinking of going to Netherlands to exercise my treaty rights as I will have a job there from the get go.

However, seeing that I will be working for the same company but in Netherlands, although getting paid over there in the bank account and paying taxes locally, would that pose an issue?

Would this be excluded from exercising treaty rights?

Or would it be considered as maintaining ties to the UK from HO point of view?

Any thoughts appreciated.

[secret.simon]

However, seeing that I will be working for the same company but in Netherlands, although getting paid over there in the bank account and paying taxes locally, would that pose an issue?

Nope, you are practically embodying the principle of free movement of labour.

So long as you have moved the center of your life lock, stock and barrel to the Netherlands, you will be fine.

If it is possible, try to get a long term transfer to the Netherlands. A three month transfer may make the Home Office argue that you have not moved the center of your life. A permanent transfer on paper sounds better.

Once you are there, show that you have taken proactive steps to integrate with Dutch life, by taking Dutch language courses, for instance.

[nt16]

Nope, you are practically embodying the principle of free movement of labour.

So long as you have moved the center of your life lock, stock and barrel to the Netherlands, you will be fine.

If it is possible, try to get a long term transfer to the Netherlands. A three month transfer may make the Home Office argue that you have not moved the center of your life. A permanent transfer on paper sounds better.

Thanks Simon for your response. Yes of course the letter from the company would not indicate anything to do with 3 months but a permanent move.

I just thought if upon returning with the family they may say that you were working for the same company so you have not really moved the centre of life?!

Once you are there, show that you have taken proactive steps to integrate with Dutch life, by taking Dutch language courses, for instance.

Yes, I am planning to do all that it takes to integrate as much as possible, whether its bank accounts, long tenancy, gym membership, exchange of drivers license etc. I have no house in the UK or no other attachments except the current job.

I am also currently battling with the local consulate in Zambia, there is no Dutch consulate but there is Swedish consulate who cater for other EU territories including NL so I contacted them to ensure if I will be able to apply for such a visa for my mother. They are looking for me to prove financial dependency quoting article 3.2(a) and for me to show that I will need her to provide bank statements. However the point in question is:

"(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;"


And if you notice there is an or condition which indicates there is no need to prove dependency for the member of the same household?

Or I am reading it wrong?

Thanks for your assistance.

[secret.simon]

However the point in question is:

"(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;"


And if you notice there is an or condition which indicates there is no need to prove dependency for the member of the same household?

Or I am reading it wrong?

I will leave it to others to comment on this specific point of EU law, but I believe (I could be wrong) "members of the household of the Union citizen" means the household you are responsible for i.e. one that you head, not just a household that you were a member of at some point in the past.

The status of adult children over 21 and of parents is based on the fact that they are dependent on you and constitute a part of your household, which is why they must come with you. But if they are not dependent on you, there is no such automatic right.

Think about it this way; your non-EEA family members derive their right to free movement based on the fact that depriving them of free movement will mean that you are not able to exercise your right to free movement.

But if your mother is not a member of your household in the UK, will it really stop you from moving to the Netherlands? I don't see why not.

Further reading: https://eumovement.wordpress.com/2008/0 ... ly-member/

[noajthan]

The main point and thrust of the regulations is, (it seems to me), it's all about not constraining the EEA sponsor's freedom of movement;
it's not about facilitating chain migration per se.

More on dependents here, including ascending dependents (parents):
http://eulawanalysis.blogspot.co.uk/201 ... tizen.html

More on Reyes:
https://www.freemovement.org.uk/cjeu-de ... n-of-fact/

Interestingly not a lot to be found specifically on the 'membership of a household'.

However there are some interesting points to be found within the analysis of this case:
https://tribunalsdecisions.service.gov.uk/utiac/37618

35. We observe that in some parts of the judgments in KG and Bigia dependency and membership of the household are treated together but as we read the Directive they are alternatives with materially different requirements.

Membership of the household must be the Union citizen’s household while dependency can either be on the Union citizen or his or her non national spouse.

We recognise that membership of the household requires at least a physical cohabitation under the same space.

and

14. However, the requirement of pre-admission dependency or membership of the household is indicated by Article 10 of the Directive that provides:

“1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called ‘Residence card of a family member of a Union citizen’ no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.

2. For the residence card to be issued, Member States shall require presentation of the following documents:

(a) a valid passport;
(b) a document attesting to the existence of a family relationship or of a registered partnership;
(c) the registration certificate or, in the absence of a registration system, any other proof of residence in the host member State of the Union citizen whom they are accompanying or joining;
(d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that conditions laid down therein are met;

(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen

[noajthan]

Membership of household:

(iv) Membership of a household has the meaning set out in KG (Sri Lanka) and Bigia & Ors;
that is to say it imports living for some period of time under the roof of a household that can be said to be that of the EEA national for a time when he or she had such nationality. That necessarily requires that whilst in possession of such nationality the family member has lived somewhere in the world in the same country as the EEA national, but not necessarily in an EEA state.

Ref: https://asadakhan.wordpress.com/2011/10 ... y-members/

[noajthan]

...

I am also currently battling with the local consulate in Zambia, there is no Dutch consulate but there is Swedish consulate who cater for other EU territories including NL so I contacted them to ensure if I will be able to apply for such a visa for my mother. They are looking for me to prove financial dependency quoting article 3.2(a) and for me to show that I will need her to provide bank statements. However the point in question is:

"(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;"


And if you notice there is an or condition which indicates there is no need to prove dependency for the member of the same household?

Or I am reading it wrong?

Thanks for your assistance.

btw the embassy appears to be in error here.

Article 3(2) is for any other family members.

A mother is a direct family member (in ascending line) and so Article 2(2) applies to her.

Or are you trying to invoke Article 3(2) in terms of 'household' because mom is not a dependent a la 2(2) but is (or was) a member of your household as per 3(2)?

[nt16]

btw the embassy appears to be in error here.

Article 3(2) is for any other family members.

A mother is a direct family member (in ascending line) and so Article 2(2) applies to her.

Or are you trying to invoke Article 3(2) in terms of 'household' because mom is not a dependent a la 2(2) but is (or was) a member of your household as per 3(2)?

@noajthan, I was just about to write that reading the cases above. They should be applying article 2(2) here and not 3.2(a). Unless if it was my sister or brother who will then be classed as beneficiaries under 3.2(a).

However, reading article 2.2 it says:

the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

Here again it uses the word dependent and the question comes back to how do you show dependency?

[nt16]

the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

Reading the directive further points 5 and 6 seem to indicate that family members defined in article 2.2 automatically enjoy the right of residence.

(5) The right of all Union citizens to move and reside freely within the territory of the Member
States should, if it is to be exercised under objective conditions of freedom and dignity, be
also granted to their family members, irrespective of nationality. For the purposes of this
Directive, the definition of "family member" should also include the registered partner if the
legislation of the host Member State treats registered partnership as equivalent to marriage.

(6) In order to maintain the unity of the family in a broader sense and without prejudice to the
prohibition of discrimination on grounds of nationality, the situation of those persons who are
not included in the definition of family members under this Directive, and who therefore do
not enjoy an automatic right of entry and residence in the host Member State, should be
examined by the host Member State on the basis of its own national legislation, in order to
decide whether entry and residence could be granted to such persons, taking into
consideration their relationship with the Union citizen or any other circumstances, such as
their financial or physical dependence on the Union citizen.

Does the highlighted mean the opposite is true for family members i.e. they automatically enjoy right of residence. In that case I am not sure what the case worker would make of the word "dependent" in 2.2.

[noajthan]

...

@noajthan, I was just about to write that reading the cases above. They should be applying article 2(2) here and not 3.2(a). Unless if it was my sister or brother who will then be classed as beneficiaries under 3.2(a).

However, reading article 2.2 it says:

the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

Here again it uses the word dependent and the question comes back to how do you show dependency?

Remittances can be one form of demonstrating your support & recipient's dependency obviously.
There is emotional dependency too.

Note if mom is a 'member of household' you would have to have been head of household as secret.simon has mentioned already.

Also note dependency does not imply destitution and it may be a matter of choice.
This is not about workfare either.
There can be no investigation of whether someone could work &/or why they do not.

If mother is not financially dependent but has (always) lived with you (for whatever reason) then I suppose that is how 'member of household' could come about.
I can't see why direct family members can be excluded from invoking that.

The point is that lack of this continuing togetherness is constraining (or discouraging) your choice to exercise free movement which is 'bad' for the EU economy.
Maybe you need to show its changes in mother's condition that are tending to pull you back to home county instead of enabling you to stay and work for the greater good of the EU economy.

Have you got any documents showing recent &/or historical membership of household (voters' registration, local tax records, census)?

Showing the embassy they are uncertain in this area may help you with your case if you can assert strongly - based on the Articles and case law.

Case law of Pedro showed there does not have to be a long history of dependency.
For direct family members it is just a 'matter of fact' and not how/why/when it came about.

I remember one case I have read of a lady in (I think) Singapore with a bungalow & a pension;
she was able to successfully demonstrate dependency on a son/daughter living in EU.
He/she sent money for her daily needs so she didn't have to eat into the inheritance nest-egg she had saved up for her grandchildren.
Unfortunately can't find it now nor remember the case name.

Anyway, Viva free movement!

[nt16]

Remittances can be one form of demonstrating your support & recipient's dependency obviously.
There is emotional dependency too.

@noajthan thanks for the response. I have been sending her money so have the remittances to show that as she is wholly financially dependent upon me and is a widow.

However, I was just curious as all that I have read around this does not mention that any document related to dependency should be shown for family members.

Even here https://eumovement.wordpress.com/2008/0 ... ly-member/ it indicates that:
These “family members” (as the Directive states) “enjoy an automatic right of entry and residence in the host Member State” when they are with their EU citizen relative.

Which I assume is derived from point 5 and 6 of the Directive as stated in the previous comment.

[secret.simon]

However, I was just curious as all that I have read around this does not mention that any document related to dependency should be shown for family members.

It does not list any documentation because the documentation is self-evident from the description.

So, for instance, to prove that somebody is your spouse, you need to show a marriage certificate (with appropriate translations and apostilles if required). It is not listed in the Directive, but how would you prove that the person is your spouse otherwise?

Similarly, for your dependent parent, you need your birth certificate (which proves that the person is your parent) and relevant bank statements (which prove dependency).

[noajthan]

However, I was just curious as all that I have read around this does not mention that any document related to dependency should be shown for family members.

It does not list any documentation because the documentation is self-evident from the description.

So, for instance, to prove that somebody is your spouse, you need to show a marriage certificate (with appropriate translations and apostilles if required). It is not listed in the Directive, but how would you prove that the person is your spouse otherwise?

Similarly, for your dependent parent, you need your birth certificate (which proves that the person is your parent) and relevant bank statements (which prove dependency).

+1

So you don't need a philosophical debate with the embassy - just quote Article 2(2) & Article 10 at them & provide appropriate docs.

It may help if mom has corresponding bank statements, receipts, money transfer chits & etc to correspond with the remittances you have remitted.
Plus any bills you may have paid for her.

[nt16]

However, I was just curious as all that I have read around this does not mention that any document related to dependency should be shown for family members.

It does not list any documentation because the documentation is self-evident from the description.

So, for instance, to prove that somebody is your spouse, you need to show a marriage certificate (with appropriate translations and apostilles if required). It is not listed in the Directive, but how would you prove that the person is your spouse otherwise?

Similarly, for your dependent parent, you need your birth certificate (which proves that the person is your parent) and relevant bank statements (which prove dependency).

+1

So you don't need a philosophical debate with the embassy - just quote Article 2(2) & Article 10 at them & provide appropriate docs.

It may help if mom has corresponding bank statements, receipts, money transfer chits & etc to correspond with the remittances you have remitted.
Plus any bills you may have paid for her.

@noajthan, @secret.simon

Fair points. Thanks for your help and clarification on this.

As for me moving to NL to work for my UK company, you dont think there should be an issue here with UK HO upon my return.

I am also thinking of returning with them without applying for a FP rather just arrive at the airport as the advantage of in country appeal is hugely appealing.

Any suggestions or pointers on this would be appreciated.

[noajthan]

...

@noajthan, @secret.simon

Fair points. Thanks for your help and clarification on this.

As for me moving to NL to work for my UK company, you dont think there should be an issue here with UK HO upon my return.

I am also thinking of returning with them without applying for a FP rather just arrive at the airport as the advantage of in country appeal is hugely appealing.

Any suggestions or pointers on this would be appreciated.

Issues: not if you satisfy the centre of life test - as you will have to.
Don't forget this is a hot potato at the moment even though DC didn't specifically mention little old ladies in his pronouncements - just foreign spouses.

You won't get on a UK-bound plane without a FP.
You could try ferry &/or bus perhaps.

Don't forget you may decide to stay in NL too; the place may win you over.
(Wait until you see their triple-decker high-speed trains, with auto-retracting steps).

[nt16]

...

@noajthan, @secret.simon

Fair points. Thanks for your help and clarification on this.

As for me moving to NL to work for my UK company, you dont think there should be an issue here with UK HO upon my return.

I am also thinking of returning with them without applying for a FP rather just arrive at the airport as the advantage of in country appeal is hugely appealing.

Any suggestions or pointers on this would be appreciated.

Issues: not if you satisfy the centre of life test - as you will have to.
Don't forget this is a hot potato at the moment even though DC didn't specifically mention little old ladies in his pronouncements - just foreign spouses.

Yes aware of that but I assume any changes to the EU law would take months.

You won't get on a UK-bound plane without a FP.
You could try ferry &/or bus perhaps.

Even if i show them the EU directive?

Perhaps take a ferry into calais. Recently We had candy2012 who travelled with his mother from Germany to CTA, not sure how he travelled but he did it without FP.

(Wait until you see their triple-decker high-speed trains, with auto-retracting steps).

Triple decker high speed trains!! Thats it. I am sold.

[noajthan]

You won't get on a UK-bound plane without a FP.
You could try ferry &/or bus perhaps.

Even if i show them the EU directive?

Perhaps take a ferry into calais. Recently We had candy2012 who travelled with his mother from Germany to CTA, not sure how he travelled but he did it without FP.

(Wait until you see their triple-decker high-speed trains, with auto-retracting steps).

Triple decker high speed trains!! Thats it. I am sold.

I won't name names in order to protect the innocent but members have reported difficulties with certain, ahem, budget airline personnel when trying to fly in to UK with family without a visa.
A search in the forum (use advanced search option) may bring up some examples.

Airlines are a law to themselves and don't want to risk the government-imposed penalties for hosting illegals.

When I say triple-decker I suppose I mean 3-level (not as high as a 3-storey house). Impressive running stock and rail system all the same.

[secret.simon]

When I say triple-decker I suppose I mean 3-level (not as high as a 3-storey house). Impressive running stock and rail system all the same.

Partially funded, I am sure, by profits made by its UK arm, Abellio.

I won't name names in order to protect the innocent but members have reported difficulties with certain, ahem, budget airline personnel when trying to fly in to UK with family without a visa.

Surely there is no need to be coy in naming Flylo, though I understand you could also be referring to Our Lady Air.

But seriously, low-cost airlines are low cost for a reason. Their staff are trained for very specific tasks and run on a very tight schedule.They are unlikely to be well-versed in EU law and not likely to be interested in the niceties or the nuances and case law surrounding the Directive as they have to head to another counter in fifteen minutes.

Get an FP if you are flying with them.

[nt16]

Get an FP if you are flying with them.

I understand the airlines are not going to have an idea about the EU law. Will need to perhaps take a bus or a ferry route.

The issue I have with FP is, in case of refusal being stuck out of country for an appeal.

Thanks to both of you for your help and suggestions.

[wegiwegi]

Get an FP if you are flying with them.

I understand the airlines are not going to have an idea about the EU law. Will need to perhaps take a bus or a ferry route.

With a FP they will let you board the plane and you will get entry to the UK

[Hamza2013]

Hi nt16,

I am in similar situation working for UK company in Eire, make sure you declare yourself with HM revenue using P85 as you are working abroad, this will change your tax code a you will be paying take in NL. With regards to dependency for my parents financial receipts of payments to them were enough, I keep you posted with progress and please do same, Thanks

secret.simon / noajthan,

We have house in uk but it is rented, I hope this will not create any problem for us if we move back, Thanks

[nt16]

Hi nt16,

I am in similar situation working for UK company in Eire, make sure you declare yourself with HM revenue using P85 as you are working abroad, this will change your tax code a you will be paying take in NL. With regards to dependency for my parents financial receipts of payments to them were enough, I keep you posted with progress and please do same, Thanks

secret.simon / noajthan,

We have house in uk but it is rented, I hope this will not create any problem for us if we move back, Thanks

Hi Hamza
Thanks for that. I have just applied for their visa with the local swedish embassy as they process visas for most of the EU countries and there is no NL embassy their. They insisted that we provide travel medical insurance as well which I submitted on Friday.

Now trying to find a place to live in NL for shorter term. Most are year long.

Whats your situation? Where did you parents apply from to join you?

[Hamza2013]

Hi nt16,

You would need a bit longer to show transfer of life scenerio, I assume you have moved with all ur family as this will make your case stronger. We are waiting for residence card at the moment,

[nt16]

Hi nt16,

You would need a bit longer to show transfer of life scenerio, I assume you have moved with all ur family as this will make your case stronger. We are waiting for residence card at the moment,

Will have my wife and mother with me.

Did your parents apply from Pak? Did they apply through gerrys? If so did you have to pay any fees?

[Hamza2013]

Yes, they applied through gerrys, no visa fee paid as they are my dependent,